Chapter 5
On the Connection between Justice and Utility.
IN ALL ages of speculation, one of the strongest obstacles to the reception
of the doctrine that Utility or Happiness is the criterion of right and
wrong, has been drawn from the idea of justice. The powerful sentiment, and
apparently clear perception, which that word recalls with a rapidity and
certainty resembling an instinct, have seemed to the majority of thinkers to
point to an inherent quality in things; to show that the just must have an
existence in Nature as something absolute, generically distinct from every
variety of the Expedient, and, in idea, opposed to it, though (as is
commonly acknowledged) never, in the long run, disjoined from it in fact.
In the case of this, as of our other moral sentiments, there is no necessary
connection between the question of its origin, and that of its binding
force. That a feeling is bestowed on us by Nature, does not necessarily
legitimate all its promptings. The feeling of justice might be a peculiar
instinct, and might yet require, like our other instincts, to be controlled
and enlightened by a higher reason. If we have intellectual instincts,
leading us to judge in a particular way, as well as animal instincts that
prompt us to act in a particular way, there is no necessity that the former
should be more infallible in their sphere than the latter in theirs: it may
as well happen that wrong judgments are occasionally suggested by those, as
wrong actions by these. But though it is one thing to believe that we have
natural feelings of justice, and another to acknowledge them as an ultimate
criterion of conduct, these two opinions are very closely connected in point
of fact. Mankind are always predisposed to believe that any subjective
feeling, not otherwise accounted for, is a revelation of some objective
reality. Our present object is to determine whether the reality, to which
the feeling of justice corresponds, is one which needs any such special
revelation; whether the justice or injustice of an action is a thing
intrinsically peculiar, and distinct from all its other qualities, or only a
combination of certain of those qualities, presented under a peculiar
aspect. For the purpose of this inquiry it is practically important to
consider whether the feeling itself, of justice and injustice, is sui
generis like our sensations of colour and taste, or a derivative feeling,
formed by a combination of others. And this it is the more essential to
examine, as people are in general willing enough to allow, that objectively
the dictates of justice coincide with a part of the field of General
Expediency; but inasmuch as the subjective mental feeling of justice is
different from that which commonly attaches to simple expediency, and,
except in the extreme cases of the latter, is far more imperative in its
demands, people find it difficult to see, in justice, only a particular kind
or branch of general utility, and think that its superior binding force
requires a totally different origin. To throw light upon this question, it
is necessary to attempt to ascertain what is the distinguishing character of
justice, or of injustice: what is the quality, or whether there is any
quality, attributed in common to all modes of conduct designated as unjust
(for justice, like many other moral attributes, is best defined by its
opposite), and distinguishing them from such modes of conduct as are
disapproved, but without having that particular epithet of disapprobation
applied to them. If in everything which men are accustomed to characterise
as just or unjust, some one common attribute or collection of attributes is
always present, we may judge whether this particular attribute or
combination of attributes would be capable of gathering round it a sentiment
of that peculiar character and intensity by virtue of the general laws of
our emotional constitution, or whether the sentiment is inexplicable, and
requires to be regarded as a special provision of Nature. If we find the
former to be the case, we shall, in resolving this question, have resolved
also the main problem: if the latter, we shall have to seek for some other
mode of investigating it.
To find the common attributes of a variety of objects, it is necessary to
begin by surveying the objects themselves in the concrete. Let us therefore
advert successively to the various modes of action, and arrangements of
human affairs, which are classed, by universal or widely spread opinion, as
Just or as Unjust. The things well known to excite the sentiments associated
with those names are of a very multifarious character. I shall pass them
rapidly in review, without studying any particular arrangement.
In the first place, it is mostly considered unjust to deprive any one of his
personal liberty, his property, or any other thing which belongs to him by
law. Here, therefore, is one instance of the application of the terms just
and unjust in a perfectly definite sense, namely, that it is just to
respect, unjust to violate, the legal rights of any one. But this judgment
admits of several exceptions, arising from the other forms in which the
notions of justice and injustice present themselves. For example, the person
who suffers the deprivation may (as the phrase is) have forfeited the rights
which he is so deprived of: a case to which we shall return presently. But
also,
Secondly; the legal rights of which he is deprived, may be rights which
ought not to have belonged to him; in other words, the law which confers on
him these rights, may be a bad law. When it is so, or when (which is the
same thing for our purpose) it is supposed to be so, opinions will differ as
to the justice or injustice of infringing it. Some maintain that no law,
however bad, ought to be disobeyed by an individual citizen; that his
opposition to it, if shown at all, should only be shown in endeavouring to
get it altered by competent authority. This opinion (which condemns many of
the most illustrious benefactors of mankind, and would often protect
pernicious institutions against the only weapons which, in the state of
things existing at the time, have any chance of succeeding against them) is
defended, by those who hold it, on grounds of expediency; principally on
that of the importance, to the common interest of mankind, of maintaining
inviolate the sentiment of submission to law. Other persons, again, hold the
directly contrary opinion, that any law, judged to be bad, may blamelessly
be disobeyed, even though it be not judged to be unjust, but only
inexpedient; while others would confine the licence of disobedience to the
case of unjust laws: but again, some say, that all laws which are
inexpedient are unjust; since every law imposes some restriction on the
natural liberty of mankind, which restriction is an injustice, unless
legitimated by tending to their good. Among these diversities of opinion, it
seems to be universally admitted that there may be unjust laws, and that
law, consequently, is not the ultimate criterion of justice, but may give to
one person a benefit, or impose on another an evil, which justice condemns.
When, however, a law is thought to be unjust, it seems always to be regarded
as being so in the same way in which a breach of law is unjust, namely, by
infringing somebody's right; which, as it cannot in this case be a legal
right, receives a different appellation, and is called a moral right. We may
say, therefore, that a second case of injustice consists in taking or
withholding from any person that to which he has a moral right. Thirdly, it
is universally considered just that each person should obtain that (whether
good or evil) which he deserves; and unjust that he should obtain a good, or
be made to undergo an evil, which he does not deserve. This is, perhaps, the
clearest and most emphatic form in which the idea of justice is conceived by
the general mind. As it involves the notion of desert, the question arises,
what constitutes desert? Speaking in a general way, a person is understood
to deserve good if he does right, evil if he does wrong; and in a more
particular sense, to deserve good from those to whom he does or has done
good, and evil from those to whom he does or has done evil. The precept of
returning good for evil has never been regarded as a case of the fulfilment
of justice, but as one in which the claims of justice are waived, in
obedience to other considerations.
Fourthly, it is confessedly unjust to break faith with any one: to violate
an engagement, either express or implied, or disappoint expectations raised
by our conduct, at least if we have raised those expectations knowingly and
voluntarily. Like the other obligations of justice already spoken of, this
one is not regarded as absolute, but as capable of being overruled by a
stronger obligation of justice on the other side; or by such conduct on the
part of the person concerned as is deemed to absolve us from our obligation
to him, and to constitute a forfeiture of the benefit which he has been led
to expect.
Fifthly, it is, by universal admission, inconsistent with justice to be
partial; to show favour or preference to one person over another, in matters
to which favour and preference do not properly apply. Impartiality, however,
does not seem to be regarded as a duty in itself, but rather as instrumental
to some other duty; for it is admitted that favour and preference are not
always censurable, and indeed the cases in which they are condemned are
rather the exception than the rule. A person would be more likely to be
blamed than applauded for giving his family or friends no superiority in
good offices over strangers, when he could do so without violating any other
duty; and no one thinks it unjust to seek one person in preference to
another as a friend, connection, or companion. Impartiality where rights are
concerned is of course obligatory, but this is involved in the more general
obligation of giving to every one his right. A tribunal, for example, must
be impartial, because it is bound to award, without regard to any other
consideration, a disputed object to the one of two parties who has the right
to it. There are other cases in which impartiality means, being solely
influenced by desert; as with those who, in the capacity of judges,
preceptors, or parents, administer reward and punishment as such. There are
cases, again, in which it means, being solely influenced by consideration
for the public interest; as in making a selection among candidates for a
government employment. Impartiality, in short, as an obligation of justice,
may be said to mean, being exclusively influenced by the considerations
which it is supposed ought to influence the particular case in hand; and
resisting the solicitation of any motives which prompt to conduct different
from what those considerations would dictate.
Nearly allied to the idea of impartiality is that of equality; which often
enters as a component part both into the conception of justice and into the
practice of it, and, in the eyes of many persons, constitutes its essence.
But in this, still more than in any other case, the notion of justice varies
in different persons, and always conforms in its variations to their notion
of utility. Each person maintains that equality is the dictate of justice,
except where he thinks that expediency requires inequality. The justice of
giving equal protection to the rights of all, is maintained by those who
support the most outrageous inequality in the rights themselves. Even in
slave countries it is theoretically admitted that the rights of the slave,
such as they are, ought to be as sacred as those of the master; and that a
tribunal which fails to enforce them with equal strictness is wanting in
justice; while, at the same time, institutions which leave to the slave
scarcely any rights to enforce, are not deemed unjust, because they are not
deemed inexpedient. Those who think that utility requires distinctions of
rank, do not consider it unjust that riches and social privileges should be
unequally dispensed; but those who think this inequality inexpedient, think
it unjust also. Whoever thinks that government is necessary, sees no
injustice in as much inequality as is constituted by giving to the
magistrate powers not granted to other people. Even among those who hold
levelling doctrines, there are as many questions of justice as there are
differences of opinion about expediency. Some Communists consider it unjust
that the produce of the labour of the community should be shared on any
other principle than that of exact equality; others think it just that those
should receive most whose wants are greatest; while others hold that those
who work harder, or who produce more, or whose services are more valuable to
the community, may justly claim a larger quota in the division of the
produce. And the sense of natural justice may be plausibly appealed to in
behalf of every one of these opinions.
Among so many diverse applications of the term justice, which yet is not
regarded as ambiguous, it is a matter of some difficulty to seize the mental
link which holds them together, and on which the moral sentiment adhering to
the term essentially depends. Perhaps, in this embarrassment, some help may
be derived from the history of the word, as indicated by its etymology.
In most, if not in all, languages, the etymology of the word which
corresponds to Just, points distinctly to an origin connected with the
ordinances of law. Justum is a form of jussum, that which has been ordered.
Dikaion comes directly from dike, a suit at law. Recht, from which came
right and righteous, is synonymous with law. The courts of justice, the
administration of justice, are the courts and the administration of law. La
justice, in French, is the established term for judicature. I am not
committing the fallacy imputed with some show of truth to Horne Tooke, of
assuming that a word must still continue to mean what it originally meant.
Etymology is slight evidence of what the idea now signified is, but the very
best evidence of how it sprang up. There can, I think, be no doubt that the
idee mere, the primitive element, in the formation of the notion of justice,
was conformity to law. It constituted the entire idea among the Hebrews, up
to the birth of Christianity; as might be expected in the case of a people
whose laws attempted to embrace all subjects on which precepts were
required, and who believed those laws to be a direct emanation from the
Supreme Being. But other nations, and in particular the Greeks and Romans,
who knew that their laws had been made originally, and still continued to be
made, by men, were not afraid to admit that those men might make bad laws;
might do, by law, the same things, and from the same motives, which if done
by individuals without the sanction of law, would be called unjust. And
hence the sentiment of injustice came to be attached, not to all violations
of law, but only to violations of such laws as ought to exist, including
such as ought to exist, but do not; and to laws themselves, if supposed to
be contrary to what ought to be law. In this manner the idea of law and of
its injunctions was still predominant in the notion of justice, even when
the laws actually in force ceased to be accepted as the standard of it.
It is true that mankind consider the idea of justice and its obligations as
applicable to many things which neither are, nor is it desired that they
should be, regulated by law. Nobody desires that laws should interfere with
the whole detail of private life; yet every one allows that in all daily
conduct a person may and does show himself to be either just or unjust. But
even here, the idea of the breach of what ought to be law, still lingers in
a modified shape. It would always give us pleasure, and chime in with our
feelings of fitness, that acts which we deem unjust should be punished,
though we do not always think it expedient that this should be done by the
tribunals. We forego that gratification on account of incidental
inconveniences. We should be glad to see just conduct enforced and injustice
repressed, even in the minutest details, if we were not, with reason, afraid
of trusting the magistrate with so unlimited an amount of power over
individuals. When we think that a person is bound in justice to do a thing,
it is an ordinary form of language to say, that he ought to be compelled to
do it. We should be gratified to see the obligation enforced by anybody who
had the power. If we see that its enforcement by law would be inexpedient,
we lament the impossibility, we consider the impunity given to injustice as
an evil, and strive to make amends for it by bringing a strong expression of
our own and the public disapprobation to bear upon the offender. Thus the
idea of legal constraint is still the generating idea of the notion of
justice, though undergoing several transformations before that notion, as it
exists in an advanced state of society, becomes complete.
The above is, I think, a true account, as far as it goes, of the origin and
progressive growth of the idea of justice. But we must observe, that it
contains, as yet, nothing to distinguish that obligation from moral
obligation in general. For the truth is, that the idea of penal sanction,
which is the essence of law, enters not only into the conception of
injustice, but into that of any kind of wrong. We do not call anything
wrong, unless we mean to imply that a person ought to be punished in some
way or other for doing it; if not by law, by the opinion of his fellow-
creatures; if not by opinion, by the reproaches of his own conscience. This
seems the real turning point of the distinction between morality and simple
expediency. It is a part of the notion of Duty in every one of its forms,
that a person may rightfully be compelled to fulfil it. Duty is a thing
which may be exacted from a person, as one exacts a debt. Unless we think
that it may be exacted from him, we do not call it his duty. Reasons of
prudence, or the interest of other people, may militate against actually
exacting it; but the person himself, it is clearly understood, would not be
entitled to complain. There are other things, on the contrary, which we wish
that people should do, which we like or admire them for doing, perhaps
dislike or despise them for not doing, but yet admit that they are not bound
to do; it is not a case of moral obligation; we do not blame them, that is,
we do not think that they are proper objects of punishment. How we come by
these ideas of deserving and not deserving punishment, will appear, perhaps,
in the sequel; but I think there is no doubt that this distinction lies at
the bottom of the notions of right and wrong; that we call any conduct
wrong, or employ, instead, some other term of dislike or disparagement,
according as we think that the person ought, or ought not, to be punished
for it; and we say, it would be right, to do so and so, or merely that it
would be desirable or laudable, according as we would wish to see the person
whom it concerns, compelled, or only persuaded and exhorted, to act in that
manner.[1]
This, therefore, being the characteristic difference which marks off, not
justice, but morality in general, from the remaining provinces of Expediency
and Worthiness; the character is still to be sought which distinguishes
justice from other branches of morality. Now it is known that ethical
writers divide moral duties into two classes, denoted by the ill-chosen
expressions, duties of perfect and of imperfect obligation; the latter being
those in which, though the act is obligatory, the particular occasions of
performing it are left to our choice, as in the case of charity or
beneficence, which we are indeed bound to practise, but not towards any
definite person, nor at any prescribed time. In the more precise language of
philosophic jurists, duties of perfect obligation are those duties in virtue
of which a correlative right resides in some person or persons; duties of
imperfect obligation are those moral obligations which do not give birth to
any right. I think it will be found that this distinction exactly coincides
with that which exists between justice and the other obligations of
morality. In our survey of the various popular acceptations of justice, the
term appeared generally to involve the idea of a personal right — a claim on
the part of one or more individuals, like that which the law gives when it
confers a proprietary or other legal right. Whether the injustice consists
in depriving a person of a possession, or in breaking faith with him, or in
treating him worse than he deserves, or worse than other people who have no
greater claims, in each case the supposition implies two things — a wrong
done, and some assignable person who is wronged. Injustice may also be done
by treating a person better than others; but the wrong in this case is to
his competitors, who are also assignable persons.
It seems to me that this feature in the case — a right in some person,
correlative to the moral obligation — constitutes the specific difference
between justice, and generosity or beneficence. Justice implies something
which it is not only right to do, and wrong not to do, but which some
individual person can claim from us as his moral right. No one has a moral
right to our generosity or beneficence, because we are not morally bound to
practise those virtues towards any given individual. And it will be found
with respect to this, as to every correct definition, that the instances
which seem to conflict with it are those which most confirm it. For if a
moralist attempts, as some have done, to make out that mankind generally,
though not any given individual, have a right to all the good we can do
them, he at once, by that thesis, includes generosity and beneficence within
the category of justice. He is obliged to say, that our utmost exertions are
due to our fellow creatures, thus assimilating them to a debt; or that
nothing less can be a sufficient return for what society does for us, thus
classing the case as one of gratitute; both of which are acknowledged cases
of justice. Wherever there is right, the case is one of justice, and not of
the virtue of beneficence: and whoever does not place the distinction
between justice and morality in general, where we have now placed it, will
be found to make no distinction between them at all, but to merge all
morality in justice.
Having thus endeavoured to determine the distinctive elements which enter
into the composition of the idea of justice, we are ready to enter on the
inquiry, whether the feeling, which accompanies the idea, is attached to it
by a special dispensation of nature, or whether it could have grown up, by
any known laws, out of the idea itself; and in particular, whether it can
have originated in considerations of general expediency.
I conceive that the sentiment itself does not arise from anything which
would commonly, or correctly, be termed an idea of expediency; but that
though the sentiment does not, whatever is moral in it does.
We have seen that the two essential ingredients in the sentiment of justice
are, the desire to punish a person who has done harm, and the knowledge or
belief that there is some definite individual or individuals to whom harm
has been done.
Now it appears to me, that the desire to punish a person who has done harm
to some individual is a spontaneous outgrowth from two sentiments, both in
the highest degree natural, and which either are or resemble instincts; the
impulse of self-defence, and the feeling of sympathy.
It is natural to resent, and to repel or retaliate, any harm done or
attempted against ourselves, or against those with whom we sympathise. The
origin of this sentiment it is not necessary here to discuss. Whether it be
an instinct or a result of intelligence, it is, we know, common to all
animal nature; for every animal tries to hurt those who have hurt, or who it
thinks are about to hurt, itself or its young. Human beings, on this point,
only differ from other animals in two particulars. First, in being capable
of sympathising, not solely with their offspring, or, like some of the more
noble animals, with some superior animal who is kind to them, but with all
human, and even with all sentient, beings. Secondly, in having a more
developed intelligence, which gives a wider range to the whole of their
sentiments, whether self-regarding or sympathetic. By virtue of his superior
intelligence, even apart from his superior range of sympathy, a human being
is capable of apprehending a community of interest between himself and the
human society of which he forms a part, such that any conduct which
threatens the security of the society generally, is threatening to his own,
and calls forth his instinct (if instinct it be) of self-defence. The same
superiority of intelligence joined to the power of sympathising with human
beings generally, enables him to attach himself to the collective idea of
his tribe, his country, or mankind, in such a manner that any act hurtful to
them, raises his instinct of sympathy, and urges him to resistance.
The sentiment of justice, in that one of its elements which consists of the
desire to punish, is thus, I conceive, the natural feeling of retaliation or
vengeance, rendered by intellect and sympathy applicable to those injuries,
that is, to those hurts, which wound us through, or in common with, society
at large. This sentiment, in itself, has nothing moral in it; what is moral
is, the exclusive subordination of it to the social sympathies, so as to
wait on and obey their call. For the natural feeling would make us resent
indiscriminately whatever any one does that is disagreeable to us; but when
moralised by the social feeling, it only acts in the directions conformable
to the general good: just persons resenting a hurt to society, though not
otherwise a hurt to themselves, and not resenting a hurt to themselves,
however painful, unless it be of the kind which society has a common
interest with them in the repression of.
It is no objection against this doctrine to say, that when we feel our
sentiment of justice outraged, we are not thinking of society at large, or
of any collective interest, but only of the individual case. It is common
enough certainly, though the reverse of commendable, to feel resentment
merely because we have suffered pain; but a person whose resentment is
really a moral feeling, that is, who considers whether an act is blamable
before he allows himself to resent it — such a person, though he may not say
expressly to himself that he is standing up for the interest of society,
certainly does feel that he is asserting a rule which is for the benefit of
others as well as for his own. If he is not feeling this — if he is
regarding the act solely as it affects him individually — he is not
consciously just; he is not concerning himself about the justice of his
actions. This is admitted even by anti-utilitarian moralists. When Kant (as
before remarked) propounds as the fundamental principle of morals, "So act,
that thy rule of conduct might be adopted as a law by all rational beings,"
he virtually acknowledges that the interest of mankind collectively, or at
least of mankind indiscriminately, must be in the mind of the agent when
conscientiously deciding on the morality of the act. Otherwise he uses words
without a meaning: for, that a rule even of utter selfishness could not
possibly be adopted by all rational beings — that there is any insuperable
obstacle in the nature of things to its adoption — cannot be even plausibly
maintained. To give any meaning to Kant's principle, the sense put upon it
must be, that we ought to shape our conduct by a rule which all rational
beings might adopt with benefit to their collective interest.
To recapitulate: the idea of justice supposes two things; a rule of conduct,
and a sentiment which sanctions the rule. The first must be supposed common
to all mankind, and intended for their good. The other (the sentiment) is a
desire that punishment may be suffered by those who infringe the rule. There
is involved, in addition, the conception of some definite person who suffers
by the infringement; whose rights (to use the expression appropriated to the
case) are violated by it. And the sentiment of justice appears to me to be,
the animal desire to repel or retaliate a hurt or damage to oneself, or to
those with whom one sympathises, widened so as to include all persons, by
the human capacity of enlarged sympathy, and the human conception of
intelligent self-interest. From the latter elements, the feeling derives its
morality; from the former, its peculiar impressiveness, and energy of self-
assertion.
I have, throughout, treated the idea of a right residing in the injured
person, and violated by the injury, not as a separate element in the
composition of the idea and sentiment, but as one of the forms in which the
other two elements clothe themselves. These elements are, a hurt to some
assignable person or persons on the one hand, and a demand for punishment on
the other. An examination of our own minds, I think, will show, that these
two things include all that we mean when we speak of violation of a right.
When we call anything a person's right, we mean that he has a valid claim on
society to protect him in the possession of it, either by the force of law,
or by that of education and opinion. If he has what we consider a sufficient
claim, on whatever account, to have something guaranteed to him by society,
we say that he has a right to it. If we desire to prove that anything does
not belong to him by right, we think this done as soon as it is admitted
that society ought not to take measures for securing it to him, but should
leave him to chance, or to his own exertions. Thus, a person is said to have
a right to what he can earn in fair professional competition; because
society ought not to allow any other person to hinder him from endeavouring
to earn in that manner as much as he can. But he has not a right to three
hundred a-year, though he may happen to be earning it; because society is
not called on to provide that he shall earn that sum. On the contrary, if he
owns ten thousand pounds three per cent stock, he has a right to three
hundred a-year; because society has come under an obligation to provide him
with an income of that amount.
To have a right, then, is, I conceive, to have something which society ought
to defend me in the possession of. If the objector goes on to ask, why it
ought? I can give him no other reason than general utility. If that
expression does not seem to convey a sufficient feeling of the strength of
the obligation, nor to account for the peculiar energy of the feeling, it is
because there goes to the composition of the sentiment, not a rational only,
but also an animal element, the thirst for retaliation; and this thirst
derives its intensity, as well as its moral justification, from the
extraordinarily important and impressive kind of utility which is concerned.
The interest involved is that of security, to every one's feelings the most
vital of all interests. All other earthly benefits are needed by one person,
not needed by another; and many of them can, if necessary, be cheerfully
foregone, or replaced by something else; but security no human being can
possibly do without on it we depend for all our immunity from evil, and for
the whole value of all and every good, beyond the passing moment; since
nothing but the gratification of the instant could be of any worth to us, if
we could be deprived of anything the next instant by whoever was momentarily
stronger than ourselves. Now this most indispensable of all necessaries,
after physical nutriment, cannot be had, unless the machinery for providing
it is kept unintermittedly in active play. Our notion, therefore, of the
claim we have on our fellow-creatures to join in making safe for us the very
groundwork of our existence, gathers feelings around it so much more intense
than those concerned in any of the more common cases of utility, that the
difference in degree (as is often the case in psychology) becomes a real
difference in kind. The claim assumes that character of absoluteness, that
apparent infinity, and incommensurability with all other considerations,
which constitute the distinction between the feeling of right and wrong and
that of ordinary expediency and inexpediency. The feelings concerned are so
powerful, and we count so positively on finding a responsive feeling in
others (all being alike interested), that ought and should grow into must,
and recognised indispensability becomes a moral necessity, analogous to
physical, and often not inferior to it in binding force exhorted,
If the preceding analysis, or something resembling it, be not the correct
account of the notion of justice; if justice be totally independent of
utility, and be a standard per se, which the mind can recognise by simple
introspection of itself; it is hard to understand why that internal oracle
is so ambiguous, and why so many things appear either just or unjust,
according to the light in which they are regarded.
We are continually informed that Utility is an uncertain standard, which
every different person interprets differently, and that there is no safety
but in the immutable, ineffaceable, and unmistakable dictates of justice,
which carry their evidence in themselves, and are independent of the
fluctuations of opinion. One would suppose from this that on questions of
justice there could be no controversy; that if we take that for our rule,
its application to any given case could leave us in as little doubt as a
mathematical demonstration. So far is this from being the fact, that there
is as much difference of opinion, and as much discussion, about what is
just, as about what is useful to society. Not only have different nations
and individuals different notions of justice, but in the mind of one and the
same individual, justice is not some one rule, principle, or maxim, but
many, which do not always coincide in their dictates, and in choosing
between which, he is guided either by some extraneous standard, or by his
own personal predilections.
For instance, there are some who say, that it is unjust to punish any one
for the sake of example to others; that punishment is just, only when
intended for the good of the sufferer himself. Others maintain the extreme
reverse, contending that to punish persons who have attained years of
discretion, for their own benefit, is despotism and injustice, since if the
matter at issue is solely their own good, no one has a right to control
their own judgment of it; but that they may justly be punished to prevent
evil to others, this being the exercise of the legitimate right of self-
defence. Mr. Owen, again, affirms that it is unjust to punish at all; for
the criminal did not make his own character; his education, and the
circumstances which surrounded him, have made him a criminal, and for these
he is not responsible. All these opinions are extremely plausible; and so
long as the question is argued as one of justice simply, without going down
to the principles which lie under justice and are the source of its
authority, I am unable to see how any of these reasoners can be refuted. For
in truth every one of the three builds upon rules of justice confessedly
true. The first appeals to the acknowledged injustice of singling out an
individual, and making a sacrifice, without his consent, for other people's
benefit. The second relies on the acknowledged justice of self-defence, and
the admitted injustice of forcing one person to conform to another's notions
of what constitutes his good. The Owenite invokes the admitted principle,
that it is unjust to punish any one for what he cannot help. Each is
triumphant so long as he is not compelled to take into consideration any
other maxims of justice than the one he has selected; but as soon as their
several maxims are brought face to face, each disputant seems to have
exactly as much to say for himself as the others. No one of them can carry
out his own notion of justice without trampling upon another equally
binding.
These are difficulties; they have always been felt to be such; and many
devices have been invented to turn rather than to overcome them. As a refuge
from the last of the three, men imagined what they called the freedom of the
will; fancying that they could not justify punishing a man whose will is in
a thoroughly hateful state, unless it be supposed to have come into that
state through no influence of anterior circumstances. To escape from the
other difficulties, a favourite contrivance has been the fiction of a
contract, whereby at some unknown period all the members of society engaged
to obey the laws, and consented to be punished for any disobedience to them,
thereby giving to their legislators the right, which it is assumed they
would not otherwise have had, of punishing them, either for their own good
or for that of society. This happy thought was considered to get rid of the
whole difficulty, and to legitimate the infliction of punishment, in virtue
of another received maxim of justice, Volenti non fit injuria; that is not
unjust which is done with the consent of the person who is supposed to be
hurt by it. I need hardly remark, that even if the consent were not a mere
fiction, this maxim is not superior in authority to the others which it is
brought in to supersede. It is, on the contrary, an instructive specimen of
the loose and irregular manner in which supposed principles of justice grow
up. This particular one evidently came into use as a help to the coarse
exigencies of courts of law, which are sometimes obliged to be content with
very uncertain presumptions, on account of the greater evils which would
often arise from any attempt on their part to cut finer. But even courts of
law are not able to adhere consistently to the maxim, for they allow
voluntary engagements to be set aside on the ground of fraud, and sometimes
on that of mere mistake or misinformation.
Again, when the legitimacy of inflicting punishment is admitted, how many
conflicting conceptions of justice come to light in discussing the proper
apportionment of punishments to offences. No rule on the subject recommends
itself so strongly to the primitive and spontaneous sentiment of justice, as
the bex talionis, an eye for an eye and a tooth for a tooth. Though this
principle of the Jewish and of the Mahometan law has been generally
abandoned in Europe as a practical maxim, there is, I suspect, in most
minds, a secret hankering after it; and when retribution accidentally falls
on an offender in that precise shape, the general feeling of satisfaction
evinced bears witness how natural is the sentiment to which this repayment
in kind is acceptable. With many, the test of justice in penal infliction is
that the punishment should be proportioned to the offence; meaning that it
should be exactly measured by the moral guilt of the culprit (whatever be
their standard for measuring moral guilt): the consideration, what amount of
punishment is necessary to deter from the offence, having nothing to do with
the question of justice, in their estimation: while there are others to whom
that consideration is all in all; who maintain that it is not just, at least
for man, to inflict on a fellow creature, whatever may be his offences, any
amount of suffering beyond the least that will suffice to prevent him from
repeating, and others from imitating, his misconduct.
To take another example from a subject already once referred to. In a co-
operative industrial association, is it just or not that talent or skill
should give a title to superior remuneration? On the negative side of the
question it is argued, that whoever does the best he can, deserves equally
well, and ought not in justice to be put in a position of inferiority for no
fault of his own; that superior abilities have already advantages more than
enough, in the admiration they excite, the personal influence they command,
and the internal sources of satisfaction attending them, without adding to
these a superior share of the world's goods; and that society is bound in
justice rather to make compensation to the less favoured, for this unmerited
inequality of advantages, than to aggravate it. On the contrary side it is
contended, that society receives more from the more efficient labourer; that
his services being more useful, society owes him a larger return for them;
that a greater share of the joint result is actually his work, and not to
allow his claim to it is a kind of robbery; that if he is only to receive as
much as others, he can only be justly required to produce as much, and to
give a smaller amount of time and exertion, proportioned to his superior
efficiency. Who shall decide between these appeals to conflicting principles
of justice? justice has in this case two sides to it, which it is impossible
to bring into harmony, and the two disputants have chosen opposite sides;
the one looks to what it is just that the individual should receive, the
other to what it is just that the community should give. Each, from his own
point of view, is unanswerable; and any choice between them, on grounds of
justice, must be perfectly arbitrary. Social utility alone can decide the
preference.
How many, again, and how irreconcilable, are the standards of justice to
which reference is made in discussing the repartition of taxation. One
opinion is, that payment to the State should be in numerical proportion to
pecuniary means. Others think that justice dictates what they term graduated
taxation; taking a higher percentage from those who have more to spare. In
point of natural justice a strong case might be made for disregarding means
altogether, and taking the same absolute sum (whenever it could be got) from
every one: as the subscribers to a mess, or to a club, all pay the same sum
for the same privileges, whether they can all equally afford it or not.
Since the protection (it might be said) of law and government is afforded
to, and is equally required by all, there is no injustice in making all buy
it at the same price. It is reckoned justice, not injustice, that a dealer
should charge to all customers the same price for the same article, not a
price varying according to their means of payment. This doctrine, as applied
to taxation, finds no advocates, because it conflicts so strongly with man's
feelings of humanity and of social expediency; but the principle of justice
which it invokes is as true and as binding as those which can be appealed to
against it. Accordingly it exerts a tacit influence on the line of defence
employed for other modes of assessing taxation. People feel obliged to argue
that the State does more for the rich than for the poor, as a justification
for its taking more from them: though this is in reality not true, for the
rich would be far better able to protect themselves, in the absence of law
or government, than the poor, and indeed would probably be successful in
converting the poor into their slaves. Others, again, so far defer to the
same conception of justice, as to maintain that all should pay an equal
capitation tax for the protection of their persons (these being of equal
value to all), and an unequal tax for the protection of their property,
which is unequal. To this others reply, that the all of one man is as
valuable to him as the all of another. From these confusions there is no
other mode of extrication than the utilitarian.
Is, then the difference between the just and the Expedient a merely
imaginary distinction? Have mankind been under a delusion in thinking that
justice is a more sacred thing than policy, and that the latter ought only
to be listened to after the former has been satisfied? By no means. The
exposition we have given of the nature and origin of the sentiment,
recognises a real distinction; and no one of those who profess the most
sublime contempt for the consequences of actions as an element in their
morality, attaches more importance to the distinction than I do. While I
dispute the pretensions of any theory which sets up an imaginary standard of
justice not grounded on utility, I account the justice which is grounded on
utility to be the chief part, and incomparably the most sacred and binding
part, of all morality. justice is a name for certain classes of moral rules,
which concern the essentials of human well-being more nearly, and are
therefore of more absolute obligation, than any other rules for the guidance
of life; and the notion which we have found to be of the essence of the idea
of justice, that of a right residing in an individual implies and testifies
to this more binding obligation. The moral rules which forbid mankind to
hurt one another (in which we must never forget to include wrongful
interference with each other's freedom) are more vital to human well-being
than any maxims, however important, which only point out the best mode of
managing some department of human affairs. They have also the peculiarity,
that they are the main element in determining the whole of the social
feelings of mankind. It is their observance which alone preserves peace
among human beings: if obedience to them were not the rule, and disobedience
the exception, every one would see in every one else an enemy, against whom
he must be perpetually guarding himself. What is hardly less important,
these are the precepts which mankind have the strongest and the most direct
inducements for impressing upon one another. By merely giving to each other
prudential instruction or exhortation, they may gain, or think they gain,
nothing: in inculcating on each other the duty of positive beneficence they
have an unmistakable interest, but far less in degree: a person may possibly
not need the benefits of others; but he always needs that they should not do
him hurt. Thus the moralities which protect every individual from being
harmed by others, either directly or by being hindered in his freedom of
pursuing his own good, are at once those which he himself has most at heart,
and those which he has the strongest interest in publishing and enforcing by
word and deed. It is by a person's observance of these that his fitness to
exist as one of the fellowship of human beings is tested and decided; for on
that depends his being a nuisance or not to those with whom he is in
contact. Now it is these moralities primarily which compose the obligations
of justice. The most marked cases of injustice, and those which give the
tone to the feeling of repugnance which characterises the sentiment, are
acts of wrongful aggression, or wrongful exercise of power over some one;
the next are those which consist in wrongfully withholding from him
something which is his due; in both cases, inflicting on him a positive
hurt, either in the form of direct suffering, or of the privation of some
good which he had reasonable ground, either of a physical or of a social
kind, for counting upon.
The same powerful motives which command the observance of these primary
moralities, enjoin the punishment of those who violate them; and as the
impulses of self-defence, of defence of others, and of vengeance, are all
called forth against such persons, retribution, or evil for evil, becomes
closely connected with the sentiment of justice, and is universally included
in the idea. Good for good is also one of the dictates of justice; and this,
though its social utility is evident, and though it carries with it a
natural human feeling, has not at first sight that obvious connection with
hurt or injury, which, existing in the most elementary cases of just and
unjust, is the source of the characteristic intensity of the sentiment. But
the connection, though less obvious, is not less real. He who accepts
benefits, and denies a return of them when needed, inflicts a real hurt, by
disappointing one of the most natural and reasonable of expectations, and
one which he must at least tacitly have encouraged, otherwise the benefits
would seldom have been conferred. The important rank, among human evils and
wrongs, of the disappointment of expectation, is shown in the fact that it
constitutes the principal criminality of two such highly immoral acts as a
breach of friendship and a breach of promise. Few hurts which human beings
can sustain are greater, and none wound more, than when that on which they
habitually and with full assurance relied, fails them in the hour of need;
and few wrongs are greater than this mere withholding of good; none excite
more resentment, either in the person suffering, or in a sympathising
spectator. The principle, therefore, of giving to each what they deserve,
that is, good for good as well as evil for evil, is not only included within
the idea of justice as we have defined it, but is a proper object of that
intensity of sentiment, which places the just, in human estimation, above
the simply Expedient.
Most of the maxims of justice current in the world, and commonly appealed to
in its transactions, are simply instrumental to carrying into effect the
principles of justice which we have now spoken of. That a person is only
responsible for what he has done voluntarily, or could voluntarily have
avoided; that it is unjust to condemn any person unheard; that the
punishment ought to be proportioned to the offence, and the like, are maxims
intended to prevent the just principle of evil for evil from being perverted
to the infliction of evil without that justification. The greater part of
these common maxims have come into use from the practice of courts of
justice, which have been naturally led to a more complete recognition and
elaboration than was likely to suggest itself to others, of the rules
necessary to enable them to fulfil their double function, of inflicting
punishment when due, and of awarding to each person his right.
That first of judicial virtues, impartiality, is an obligation of justice,
partly for the reason last mentioned; as being a necessary condition of the
fulfilment of the other obligations of justice. But this is not the only
source of the exalted rank, among human obligations, of those maxims of
equality and impartiality, which, both in popular estimation and in that of
the most enlightened, are included among the precepts of justice. In one
point of view, they may be considered as corollaries from the principles
already laid down. If it is a duty to do to each according to his deserts,
returning good for good as well as repressing evil by evil, it necessarily
follows that we should treat all equally well (when no higher duty forbids)
who have deserved equally well of us, and that society should treat all
equally well who have deserved equally well of it, that is, who have
deserved equally well absolutely. This is the highest abstract standard of
social and distributive justice; towards which all institutions, and the
efforts of all virtuous citizens, should be made in the utmost possible
degree to converge.
But this great moral duty rests upon a still deeper foundation, being a
direct emanation from the first principle of morals, and not a mere logical
corollary from secondary or derivative doctrines. It is involved in the very
meaning of Utility, or the Greatest Happiness Principle. That principle is a
mere form of words without rational signification, unless one person's
happiness, supposed equal in degree (with the proper allowance made for
kind), is counted for exactly as much as another's. Those conditions being
supplied, Bentham's dictum, "everybody to count for one, nobody for more
than one," might be written under the principle of utility as an explanatory
commentary.[2] The equal claim of everybody to happiness in the estimation
of the moralist and the legislator, involves an equal claim to all the means
of happiness, except in so far as the inevitable conditions of human life,
and the general interest, in which that of every individual is included, set
limits to the maxim; and those limits ought to be strictly construed. As
every other maxim of justice, so this is by no means applied or held
applicable universally; on the contrary, as I have already remarked, it
bends to every person's ideas of social expediency. But in whatever case it
is deemed applicable at all, it is held to be the dictate of justice. All
persons are deemed to have a right to equality of treatment, except when
some recognised social expediency requires the reverse. And hence all social
inequalities which have ceased to be considered expedient, assume the
character not of simple inexpediency, but of injustice, and appear so
tyrannical, that people are apt to wonder how they ever could have. been
tolerated; forgetful that they themselves perhaps tolerate other
inequalities under an equally mistaken notion of expediency, the correction
of which would make that which they approve seem quite as monstrous as what
they have at last learnt to condemn. The entire history of social
improvement has been a series of transitions, by which one custom or
institution after another, from being a supposed primary necessity of social
existence, has passed into the rank of a universally stigmatised injustice
and tyranny. So it has been with the distinctions of slaves and freemen,
nobles and serfs, patricians and plebeians; and so it will be, and in part
already is, with the aristocracies of colour, race, and sex.
It appears from what has been said, that justice is a name for certain moral
requirements, which, regarded collectively, stand higher in the scale of
social utility, and are therefore of more paramount obligation, than any
others; though particular cases may occur in which some other social duty is
so important, as to overrule any one of the general maxims of justice. Thus,
to save a life, it may not only be allowable, but a duty, to steal, or take
by force, the necessary food or medicine, or to kidnap, and compel to
officiate, the only qualified medical practitioner. In such cases, as we do
not call anything justice which is not a virtue, we usually say, not that
justice must give way to some other moral principle, but that what is just
in ordinary cases is, by reason of that other principle, not just in the
particular case. By this useful accommodation of language, the character of
indefeasibility attributed to justice is kept up, and we are saved from the
necessity of maintaining that there can be laudable injustice.
The considerations which have now been adduced resolve, I conceive, the only
real difficulty in the utilitarian theory of morals. It has always been
evident that all cases of justice are also cases of expediency: the
difference is in the peculiar sentiment which attaches to the former, as
contradistinguished from the latter. If this characteristic sentiment has
been sufficiently accounted for; if there is no necessity to assume for it
any peculiarity of origin; if it is simply the natural feeling of
resentment, moralised by being made coextensive with the demands of social
good; and if this feeling not only does but ought to exist in all the
classes of cases to which the idea of justice corresponds; that idea no
longer presents itself as a stumbling-block to the utilitarian ethics.
Justice remains the appropriate name for certain social utilities which are
vastly more important, and therefore more absolute and imperative, than any
others are as a class (though not more so than others may be in particular
cases); and which, therefore, ought to be, as well as naturally are, guarded
by a sentiment not only different in degree, but also in kind; distinguished
from the milder feeling which attaches to the mere idea of promoting human
pleasure or convenience, at once by the more definite nature of its
commands, and by the sterner character of its sanctions.
THE END
______
[1] See this point enforced and illustrated by Professor Bain, in an
admirable chapter (entitled "The Ethical Emotions, or the Moral Sense"), of
the second of the two treatises composing his elaborate and profound work on
the Mind.
[2] This implication, in the first principle of the utilitarian scheme, of
perfect impartiality between persons, is regarded by Mr. Herbert Spencer (in
his Social Statics) as a disproof of the pretensions of utility to be a
sufficient guide to right; since (he says) the principle of utility
presupposes the anterior principle, that everybody has an equal right to
happiness. It may be more correctly described as supposing that equal
amounts of happiness are equally desirable, whether felt by the same or by
different persons. This, however, is not a pre-supposition; not a premise
needful to support the principle of utility, but the very principle itself;
for what is the principle of utility, if it be not that "happiness" and
"desirable" are synonymous terms? If there is any anterior principle
implied, it can be no other than this, that the truths of arithmetic are
applicable to the valuation of happiness, as of all other measurable
quantities.
Mr. Herbert Spencer, in a private communication on the subject of the
preceding Note, objects to being considered an opponent of utilitarianism,
and states that he regards happiness as the ultimate end of morality; but
deems that end only partially attainable by empirical generalisations from
the observed results of conduct, and completely attainable only by deducing,
from the laws of life and the conditions of existence, what kinds of action
necessarily tend to produce happiness, and what kinds to produce
unhappiness. What the exception of the word "necessarily," I have no dissent
to express from this doctrine; and (omitting that word) I am not aware that
any modern advocate of utilitarianism is of a different opinion. Bentham,
certainly, to whom in the Social Statics Mr. Spencer particularly referred,
is, least of all writers, chargeable with unwillingness to deduce the effect
of actions on happiness from the laws of human nature and the universal
conditions of human life. The common charge against him is of relying too
exclusively upon such deductions, and declining altogether to be bound by
the generalisations from specific experience which Mr. Spencer thinks that
utilitarians generally confine themselves to. My own opinion (and, as I
collect, Mr. Spencer's) is, that in ethics, as in all other branches of
scientific study, the consilience of the results of both these processes,
each corroborating and verifying the other, is requisite to give to any
general proposition the kind degree of evidence which constitutes scientific
proof.